Clarivate’s Karl Doane wrote the below article focusing upon trade dress and industrial design searching and its increasing import.
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Infringement on the rise: 35% of brands suffer Industrial Design infringement
By: Karl Doane, Senior Product Manager, CompuMark
The ongoing globalization of markets and the ease to reach consumers online, has resulted in more and more trademarks being filed to take advantage of commercial opportunities. Today, there are more trademarks than ever before and according to the World Intellectual Property Organization (WIPO), the number of trademark application filings is rising exponentially.
With the proliferation of trademark registrations globally, brand owners are finding it increasingly difficult to register a trademark that is unique and meaningful without infringing on an existing mark. On top of this, once they obtain a unique trademark, they must keep an eye out for infringement by others on their existing portfolios. This underscores the importance of both trademark research ahead of registration and vigilance afterwards.
Infringement on the rise
While brands are trying to minimize the impact of potential infringement, it is still on the rise. According to recent research conducted by CompuMark, eighty-one percent of respondents said they experienced instances of infringement in 2018 – this is nearly 10% more than in 2017.
Infringement is not just being experienced across traditional marks, like business and brand names, but also industrial design. One in three brands experienced infringement of their industrial design trademarks over the past year.
What this means for trademark professionals is that they need to monitor their existing industrial designs and conduct thorough research before they file a new one.
The risks of missing a mark
While instances of infringement are rising, it is the consequences that have a real bearing on the brand. A brand that isn’t completely sure about their research process is at risk of paying a high price for it.
The first hazard is obvious: not having a registered trade dress or industrial design trademark (depending on your filing strategy). When a brand operates without properly registering its trade dress or industrial design, it opens the door for competitors to copy and capitalize on already-developed design equity. As a result, if a copycat competitor starts using their assets, it may have to engage in costly legal procedures to regain ownership of their own design. These procedures can get even more complicated if the copycat brand has actually registered the trade dress or industrial design, regardless of who was using it first.
Another hazard brands face when not conducting research is the fact that there isn’t any way for them to know if they have the rights to use a design. Therefore, they might be infringing upon other trade dress or industrial designs without even knowing it.
Finally, a design that conflicts with an existing design will likely be rejected by the examiner – months after you’ve filed it. Therefore, searching before you file reduces the risk of that happening and will save you time when launching a product.
As trademark registrations continue to rise, the importance of search is undeniable. But the question is, can this process become easier and more time and cost efficient for brands?
Technology is leading the way
When it comes to trade dress and industrial design research, technology plays a fundamental role in optimizing and making the process more efficient.
Trade dress and Industrial Design registration is a visual process. Codes and classes are included to classify them but what really matters is how a design looks. While the human brain is best at comparing two images, artificial intelligence and image recognition technology can help identify identical and similar images out of a database of millions of images far faster than a human ever could.
Through the learning of patterns and a much more intuitive interaction, technology enables a different type of analysis. And by doing so, it focuses the search, and delivers more accurate results – quickly.
With just a few clicks, this tool can compare a trade dress or industrial design, creating a complete analysis of similarities and deliver an evaluation on whether a specific design infringes on any other design.
The future of the industrial design trademark research
By making this process more accessible, easy-to-use, AI-powered image recognition software is bound to become a powerful industrial design trademark research tool, especially when combined with human knowledge and expertise.
With over 12 million trademark applications filed worldwide last year, which according to WIPO indicators represents an increase of 26.8% from the year before , trademark research is becoming increasingly important. Therefore, as the amount of businesses filing trademarks keeps growing, the need for faster, simpler and more effective ways to research will become more essential.
This powerful technology changes trade dress and industrial design trademark research by making it more practical, avoiding irrelevant results, optimizing time and broadening the search to achieve precision on a whole other level. It also adds value and creates new opportunities for different types of businesses to build a strategy that adjusts to their needs, without having to compromise budgets, time frames or goals.